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8. Shri B. Routray appearing for the appellant contended that the plaintiff cannot avail of Section 53A of the Transfer of Property Act in a suit for specific performance of contract of sale, and the requirement of the said section is not satisfied in the case since there is neither any pleading nor any evidence to show that the plaintiff had done anything in furtherance of the contract. He submitted that even accepting the finding of possession in favour of the plaintiff recorded by the lower appellate Court, mere continuance of possession cannot be said to be an act in furtherance of the contract of sale. He cited several decisions in support of his contention. I may notice a few of them here.

In the case of Prabodh Kumar Das and Ors. v. Dantmara Tea Co. Ltd. and Ors.(AIR 1940 PC 1). it was observed :

"The amendment of the law effected by the enactment of Section 53A conferred no right of action on a transferee in possession under an unregistered contract of sale. The right conferred by Section 53A is a right available only to the defendant to protect his possession. The Section is so framed as to impose a statutory bar on the transferor; it confers no active title on the transferee."

Relying on the above decision of the Privy Council, the Supreme Court in the case of Delhi Motor Co. and Ors. v. U. A. Basrurkar (dead) by his legal representatives and Ors. : (AIR 1968 SC 794) took the view that Section 53A of the Transfer of Property Act is only available as a defence to a lessee and not as conferring a right on the basis of which the lessee can claim rights against the lessor.

The Calcutta High Court also followed the said decision of the Privy Council in the case of Sm. Parul Bala Ghosh v. Saroj Kumar Goswami and Ors. (AIR 1948 Cal. 147) and held that the right conferred by Section 53A is a right available only to the defendant to protect his possession. It confers no active title on the transferee. Thus a transferee in possession under a contract of safe cannot avail himself of the provisions of Section 53A in a suit by him for specific performance of the contract.

The Court further observed :

"Where, therefore, the mortgagee has failed to prove that he did any act in furtherance of the contract, continued retention of possession being a circumstance of neutral character in the facts and circumstances of the case and it being further established that the mortgagee was not willing to perform his part of the contract, it is dear that the mortgagee is not entitled to the benefit of the equitable doctrine of part performance."

10. From the conspectus of the views taken in the aforementioned decided cases, the position of law is manifest that Section 53A of the Transfer of Property Act is not available to the plaintiff in a suit for specific performance of contract. Further, in order to avail of the benefit of the said statutory provision, the party concerned has to establish that he has done something in furtherance of the contract and is always ready and willing to perform his part of the contract. In a case where the plea taken is one of continuing in possession with a change of character of possession, the party cannot succeed by establishing mere continuance of possession of the property and he has to establish some other action taken in furtherance of the contract. Applying the aforesaid principle to the case in hand, the suit is bound to be dismissed. The lower appellate Court committed an error of law in applying the provision of Section 53A of the Transfer of Property Act in favour of the plaintiff. He also committed an error of law in applying the said section in support of the plaintiff's case on the mere finding that he continued in possession after execution of the agreement for sale (Ext.3), without recording any finding that the plaintiff has succeeded in establishing any independent act to show that he had done something in furtherance of the contract of sale. The decision of the Supreme Court in the case of Ram Bilas Ojha and Ors. v. Bishwa Muni and Ors. (AIR 1978 SC 1094) on which the lower appellate Court has placed reliance, is clearly distinguishable. That is not a decision on Section 53A of the Transfer of Property Act. There, the Court considered Section 10 of the Specific Relief Act, 1963 in relation to the plea of bona fide purchase without notice. The Court observed that in view of the false plea taken by the subsequent purchasers that they were in possession, it could not be said that they were bona fide purchasers without notice. Indeed, the Court has observed: